Adoption of a New ICCS Convention to Facilitate Cross-Border Unions

A Convention on the issue of certificates of matrimonial capacity and capacity to enter into a registered partnership was adopted on 13 September 2024 under the International Commission on Civil Status (ICCS). This is in fact the 35th instrument elaborated in the framework of ICCS.

As explained by its Explanatory Report, the Convention builds on Convention (No.20) on the issue of a certificate of legal capacity to marry, signed in Munich on 5 September 1980. As a continuum of the Munich Convention, it aims to facilitate the proof that persons wishing to enter into a (marital or partnership) union abroad fulfil the conditions for doing so.

The text is now open to signature and has already been signed by Switzerland.

I interviewed the Secretary General of the ICCS, Nicolas Nord, to find out more about this new Convention, its ratio legis, its main provisions and the ICCS’s ambitions in this context.

What is the central purpose of Convention No. 35? And more specifically, what is the legal methodology adopted for the circulation of the matrimonial and registered partnership certificates?

Convention No. 20 dates back to 1980. It is of course no longer adapted to today’s realities. That is why it seemed relevant to adopt a more modern text tailored to contemporary needs. There are several key new features.

First, the material scope of the certificates has been extended. Not only certificates of matrimonial capacity but also certificates of capacity to enter into a registered partnership, an institution that did not exist at the time of the adoption of the Munich Convention, may be issued on the basis of this text. Certificates can also be issued for same-sex marriages. Moreover, the application of Convention No. 35 is extended to foreigners residing on the territory of the States Parties and is no longer restricted to nationals only.

Second, as regards the methodology, Contracting States shall issue the certificate based on the ICCS models (see Appendix 1 to this Convention, Forms 1A, 1B, 2A, 2B). These models contain standard entries that must be completed with codes numbers (see Appendix 2) according to the personal situation in question. Then, the certificates shall be accepted without legalisation or equivalent formality in each of the Contracting States (Art. 6). This provision is obviously very favourable to the cross-border circulation of personal status. However, some possible ways of control by Receiving States have been introduced.

How does Convention No. 35 deal with cultural differences between States in an area as sensitive as the regulation of forms of unions? The legal conditions governing the union of couples vary strongly worldwide; same-sex marriage and registered partnerships are only allowed in some jurisdictions.

There were indeed many discussions because of the different conceptions between States regarding marriage and registered partnership. As always, the ICCS’ objective is to enable harmonious cohabitation, without intervening in the substance of the law. The Convention therefore has a general vocation, but States may make reservations. In particular, they may decide not to apply the text to marriages between persons of the same sex or to registered partnerships in general or to one or more of their forms.

Likewise, the above-mentioned ICCS models are the result of compromises. This is the case, for example, when it comes to specifying a person’s gender. For people who do not recognise themselves as either male or female, the X symbol may be used.

How should Convention No. 35 interplay and/or be articulated with the Hague Conventions on the circulation of public documents and the EU Regulation on public documents? 

Certificates issued on the basis of Convention No. 35 are exempt from legalisation and all similar formalities. They do not therefore have to be apostilled, which facilitates their circulation. As regards, the Public Documents Regulation, it provides for a form of coexistence with ICCS instruments, without any real interaction. On the one hand, the Regulation allows other international cooperation frameworks to apply, enabling the circulation of public documents, such as the ICCS Conventions. Secondly, the issue addressed by the new Convention is not covered by the Regulation in the same way. Here, the Convention goes beyond mere acceptance of a public document to create a probative value for certificates. This means that Convention No. 35 could be applied in relations between Member States of the European Union.

The number of States that are members of the ICCS has decreased in recent years. Which States took part in the negotiation of Convention No. 35, and which States might join it in the future? 

A large number of States, well beyond the ICCS members, have been involved in the working group. More than twenty of them took part in the various meetings. The ICCS’s partners also contributed to the drafting of the Convention (i.e. European Commission, Council of Europe, Hague Conference on Private International Law).

Professional organisations were also involved, enabling us to benefit from the expertise of practitioners who will be using the text in the future (Association du Notariat francophone, EVS – European Association of Registars). Finally, the European Law Institute has also actively contributed to our work.

Eleven States are currently bound by Convention No. 20. It would seem logical for them to accede to the new convention. More generally, the solutions currently used in some States are unsatisfactory, as a “certificate of custom” (certificats de coutume) is required from the persons concerned by the future union. It is often difficult for them to obtain it and the cost can be high. Moreover, such a document provides no real guarantee. Using Convention No. 35 and the forms it creates would be easier and more effective.

I would like to thank Nicolas for the very interesting light he has shed on this new legal achievement of ICCS and wish success to Convention No. 35. It sends a strong signal to the international community about the need to continue working together, in a highly operational way, to facilitate the international movement of couples. It is a “helping hand” to States and regional organisations such as the European Union in favour of the permanence of personal status.